U.S. v. Thomas
| Citation | 510 F.3d 714 |
| Decision Date | 17 December 2007 |
| Docket Number | No. 06-1381.,No. 06-1488.,No. 06-1900.,No. 06-1601.,No. 06-1555.,06-1381.,06-1488.,06-1555.,06-1601.,06-1900. |
| Parties | UNITED STATES of America, Plaintiff-Appellee/Cross-Appellant, v. Sheila THOMAS, Jesse Lewis, and Kelvin Ellis, Defendants-Appellants, and Charles Powell, Jr., Defendant-Appellant/Cross-Appellee. |
| Court | United States Courts of Appeals. United States Court of Appeals (7th Circuit) |
Michael C. Carr (argued), James M. Cutchin, Office of the United States Attorney, Benton, IL, for Plaintiff-Appellee/Cross-Appellant.
Paul E. Sims (argued), Stokely Group, St. Louis, MO, for Defendants-Appellants.
Before EASTERBROOK, Chief Judge, and FLAUM and SYKES, Circuit Judges.
The defendants in this case—four Democratic precinct committeemen in East St. Louis, Illinois—were convicted of election fraud crimes for their participation in a vote-buying conspiracy during the November 2004 election. They argue on appeal that the evidence was insufficient to establish the existence of a single conspiracy, and that the admission of a DVD of a political speech given by a key government witness was reversible error. We reject these arguments and affirm.
The government brings a cross-appeal regarding the district court's refusal to apply the two-level sentencing guidelines enhancement in U.S.S.G. § 3B1.3 for abuse of a position of trust by defendant Charles Powell, the chairman of the Democratic precinct committee in East St. Louis. Powell argued in the district court that the enhancement should not apply because the increased Democratic voter turnout brought about by the vote-buying scheme cannot have abused the trust of the Democratic Party, which would have desired that result. Who's to say, counsel argued at sentencing, "that the Democratic Party got anything less from Mr. Powell than what [it] expected?"
The district court did not fully credit this extraordinary argument but rejected the enhancement anyway, based on a variant of it; that is, the judge thought the government should have produced a Democratic Party official to establish that Powell was acting against the party's interests. This was unnecessary. One who uses a position of trust to commit a crime has necessarily abused that trust; the government need not prove actual harm to the interests of those whose trust has been abused. Stated differently, the enhancement presupposes greater punishment is justified based on the exploitation inherent in the use of a position of trust to commit a crime. This is so regardless of the type or degree of harm caused or the identity or even the existence of a victim. Here, Powell's coordination of the vote-buying scheme through his chairmanship of the local Democratic precinct committee significantly facilitated the commission of the crime and therefore was an abuse of a position of trust within the meaning of § 3B1.3 of the sentencing guidelines. Accordingly, we vacate Powell's sentence and remand for application of the enhancement and resentencing.
Sheila Thomas, Jesse Lewis, Kelvin Ellis, and Charles Powell were charged with conspiracy to commit election fraud in violation of 18 U.S.C. § 371 and 42 U.S.C. § 1973i(c).1 All four defendants were Democratic precinct committeemen in East St. Louis, Illinois. Two also held leadership positions in the precinct committee: Powell was committee chairman and Thomas was committee secretary. According to the superseding indictment, the conspiracy existed for the purpose of "knowingly and willfully pay[ing] and offer[ing] to pay voters for voting in the [ ] November 2, 2004 general election ... to secure the election of certain candidates for elective office whom the defendants and their co-conspirators favored...." The indictment alleged that in the course of chairing committee meetings, Powell directed committeemen to submit election-day budgets to the St. Clair County Democratic Committee for funds to pay voters in their precincts to vote for Democratic candidates. The other defendants attended these meetings and participated in the vote-buying activities as directed. In addition to the conspiracy count, Thomas, Lewis, and Ellis were also charged with aiding and abetting election fraud in violation of 18 U.S.C. § 2 and 42 U.S.C. § 1973i(c) for paying and offering to pay voters on election day, November 2, 2004. The case proceeded to a 17-day jury trial on these charges. We summarize the key evidence below.
The bulk of the prosecution's case came from an informant named Rudy McIntosh, who at the time of the November 2004 election was a 12-year veteran of the East St. Louis Police Department and a newly elected Democratic precinct committeeman. He was working with the FBI on an unrelated investigation into certain committeemen; in connection with that investigation, he surreptitiously recorded an October 12, 2004 committee meeting chaired by Powell. During the meeting, the following discussion took place between Powell and the committeemen present:
Later in the same meeting, Powell explained to committeemen how to prepare a budget to cover election-day voter payments:
POWELL: Now if you're a hundred and fifty vote getter, add that one hundred and fifty times five dollars. Let me tell you how they [the St. Clair County Democratic Committee] figure it. They figure about five dollars a vote and they know you gonna' pay everybody who come vote. They know you don't spend that amount of money recruiting voters. They already know this but they're willing ta' pay it.
After this meeting, McIntosh spoke briefly about his election-day budget with Ellis, who acknowledged the vote-payment practice and encouraged McIntosh to "ask for the max" in that portion of his budget.
After hearing this recording, the FBI shifted its investigation to focus on the vote-buying activity in the Democratic precinct committee and worked with McIntosh to record additional meetings and conversations. One such conversation took place between McIntosh and Lewis on October 18, 2004:
....
After the election McIntosh also recorded a conversation with Thomas, who had been present at the earlier committee meetings when the voter-payment plans for the November 2 election were discussed. This conversation took place on November 10, 2004:
....
THOMAS: Uh, Charlie [Powell's son] took care of the money part. Everybody schooled me on my little money thing and now on I take care of my own money thing.
In these and other recordings, the defendants referenced paying voters $5 or $10 to vote for Democratic candidates. Beyond the recorded conversations, McIntosh also testified about his own activities on election day and during the weeks preceding the election. During extensive cross-examination, McIntosh repeatedly contradicted himself and was discredited on many subjects. One such subject was his own campaign for township supervisor in the April 2005 local election, which took place shortly after the initial indictment in this case was returned and McIntosh's role in the investigation became publicly known. McIntosh was asked on cross-examination whether he had claimed during that election that the FBI was supporting him; he denied it. In response, the defense introduced a portion of a four-minute campaign speech during which McIntosh appeared to suggest that the FBI supported his candidacy. The government then asked that the entire DVD of the speech be admitted and played for the jury for purposes of providing context. The prosecutor contended that McIntosh's reference to the FBI was only meant to highlight the ongoing FBI investigation and suggest that the FBI supported lawful elections in East St. Louis.
Judge Murphy accepted the government's...
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